eDiscovery Navigator

Obtaining Disclosure of ESI From Non-Parties

Obtaining Disclosure of ESI From Non-Parties

"It must be hard to be a computer network professional. You're responsible to maintain security, you have little or no control over what people send and receive from the computers you maintain, and you may be the only person with the technical knowledge and access to identify the source and availability of electronically stored information. I imagine these folks hate subpoenas, especially if they have nothing to do with their employer's business.

In Tener v. Cremer,[FOOTNOTE 1] the plaintiff sought to compel a non-party, New York University, to respond to a subpoena that might enable the plaintiff to identify the source of a posting on "Vitals.com," an internet opinion website that advertises itself as the place "where doctors are examined." This appears to be one of many internet sites that solicit opinions that others may use in making consumer decisions, and the plaintiff in Tener was a board certified physician who wanted to sue the author of allegedly defamatory remarks."

 

Court Ordered Non-Party to Pay Cost of Retrieval of E-Mails and Plaintiff Reasonable Cost of Production

United States ex rel. Parikh v. Premera Blue Cross, Case No. 06-MC-00097 (S.D. Ohio Mar. 16, 2007)

PricewaterhouseCooopers ("PwC") is a non-party in this discovery dispute.  Defendant Premera Blue Cross ("Premera") hired PwC to audit its receipt of Medicare payments.  In November 2006, PwC was ordered by subpoena to produce all emails between it and Premera.  PwC produced some but not all of the requested electronically stored information ("ESI").  So, qui tam Plaintiff filed a motion to compel.

Six Hard-Learned Lessons About EDD

As a follow-up to my earlier post on the eDiscovery Survival Guide for Corporate Counsel, here are six important lessons learned from the recent case of In re NTL, Inc. Securities Litigation, Case No. 02-3013, -7377 (S.D.N.Y. Jan. 30, 2007).

1.  Plan ahead -- Start early to get a good understanding of a client's computer/storage systems and retention policies.

2.  Stay focused -- Don't neglect to follow up on the litigation hold memo after it is circulated.  The attorney must be proactive, not reactive, during the entire ediscovery process.

3.  Hide the ball at your peril -- Evading one's ediscovery obligations can result in severe sanctions.  In In re NTL, Inc. Securities Litigation, the court imposed an adverse inference spoliation sanction against the defendants.

4.  Know what you "control" -- Its definition is broader than you think, as the court in In re NTL, Inc. Securities Litigation explained:

Under [FRCP] Rule 34, "control" does not require that the party have legal ownership or actual physical possession of the documents at issue; rather, documents are considered to be under a party's control when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action.  (Emphasis added; internal quotation marks omitted.)

5.  Don't overdelegate -- Make sure the attorney who has been delegated to litigate ediscovery issues understand their legal consequences.

6.  Or else -- Gross negligence in preserving documents can land one in hot water, as In re NTL, Inc. Securities Litigation illustrated:

[T]he Gordon plaintiffs have demonstrated that defendant NTL Europe's failure to preserve documents and ESI ["electronically stored information"] relevant to plaintiffs' allegations was at a minimum grossly negligent. In light of NTL Europe's failure to call the Demerger Agreement to the Court's attention, the Court could find bad faith, but it need not reach that issue. Thus, no extrinsic proof of relevance is necessary, and the Gordon plaintiffs are entitled to an adverse inference spoliation instruction.

(Source: Boehning, Christopher H. and Toal, Daniel J., "Six Hard-Learned Lessons About EDD" (Mar. 2, 2007).)